Monday, November 14, 2011

Constitutional confrontation

The battle is finally upon us. On Monday morning, the Supreme Court agreed to hear arguments in March and decide the fate of Obama's healthcare law, with an election-year ruling due by July on the largest infringement of our individual liberties in nearly 50 years (of course some in the media refer to it as "the U.S. healthcare system's biggest overhaul in nearly 50 years"). Reuters reports:

The justices in a brief order agreed to hear the appeals. At the heart of the legal battle is whether the Congress overstepped its powers by requiring that all Americans buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.

A Supreme Court spokeswoman said oral arguments would take place in March. There will be a total of 5-1/2 hours of arguments.

The Obama administration in its appeal to the Supreme Court argued that Congress could adopt the insurance purchase requirement under its powers in the U.S. Constitution to regulate interstate commerce.

The 26 states, led by Florida, argued that Congress exceeded its powers and that all of the law should be struck down. The group representing independent business also took the same position as the states.

The Constitutional confrontation begins...it's only unfortunate that our Congress couldn't determine what is and is not constitutional, and we have to depend on the courts for such a decision.

ADDENDUM: Also, the Media Research Center and Judicial Watch obtained some interesting emails that make it clear why former Solicitor General, and now Supreme Court Justice, Elena Kagan should recuse herself of any rulings on Obamacare. CNSNews reports:

On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com's parent organization, and to Judicial Watch.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed--and which became the target of legal challenges--while Kagan was serving as Obama's solicitor general and was responsible for defending his administration’s positions in court disputes.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Smell that? That whiff of FDR tactics with Obama's appointment of Kagan?